Preparing for a Marathon Trial

Recently, in preparing to try a seven-month jury trial in Humboldt County,  I tried to find an article with advice on how to prepare for a marathon trial.   Surprisingly, there was very little on the subject.  Therefore, I turned to my usual sources (attorneys who’ve been there) and obtained the following insights, all of which proved true:

PERSONAL

1.    Get your family behind you.   I have never been much for involving my family in the litigation that I do.   To me, it’s always smacked a little of self-promotion.  Nevertheless, you need to have your family involved in your case.  They need to understand why it’s important, and you need to invite them to the opening statement and closing arguments  so that they understand why you’re devoting a substantial portion of your life and your sanity to the case.  They probably didn’t have a say in you getting involved in this, and they have every reason to resent the toll it will take on their lives.

2.    Ditto, your law firm partners.   They are going out on a limb to support you, and you need to acknowledge that whenever you can.

3.    Make sure you keep your health.  Have a consistent work-out policy and do it on a daily basis.  You will want to lapse because there is always that important witness that you have to prepare for tomorrow.   Don’t.   As one of my co-counsel was fond of saying, “It’s a marathon, not a sprint.”  You start slacking off on your health, you will feel it by the end of trial.

4.    Take at least one-half day off every week.  Spend that with your family.  The trial will end, make sure your marriage doesn’t.

CO-COUNSEL

5.    Hang out with your co-counsel.  Have a beer, play basketball, whatever it takes to bond yourself with these  folks.  You will be in the trenches, and it will be a long experience.  You will come out of your trial either being their most loyal friend or hating them eternally.  Better the former!

6.    Have co-counsel you can rely on.  No one attorney can try a lengthy trial competently.  In the lengthy case I recently tried, the jurors were asked afterwards whether or not they were at all offended that there were multiple attorneys putting on witnesses, and they indicated that the variety actually kept the case interesting.  So if you have that hot-shot attorney in your office who can step in and do a day’s worth of witnesses, let them take their shot.  The jury will not be offended and you will have a much needed break.

7.    Trust your co-counsel.  When they are putting on a witness, they are putting on the witness.  Keep your mouth shut and don’t interfere.  Never second guess what they have done.  They will need to make split second decisions, and not all of those decisions will be right.  Welcome to world of trial practice.   Opposing counsel were often interrupted during their examinations and it threw them off stride.  This was the subject of strong criticism by the jury after the trial.  If you believe that some question desperately needs to be asked next, take a break and give it to them.  If they reject it, that is their call.

TRIAL

8.    Prepare an agenda.  One thing that worked well for us is that every day my co-counsel would prepare an agenda for the Court.  It didn’t matter whether or not the agenda said “nothing is going to happen,” an agenda was prepared.   That allows you to control what is going to be argued and in what order.  The other side won’t want to do it because it is a pain in the neck.  Having said that, it is a very useful pain in the neck and well worth doing.

9.    Do a daily summary.  The summary should be a summary of everything that occurred and should be no more than 3 pages.  We got about four months behind on these summaries, and they were a major pain to go back and make up.

10.    Retain your sense of humor.  You will at some point do things in front of the jury that they will laugh at.  Laugh with them.

11.    Be polite to your opposing counsel.  There may be times when you will want to strangle them.  It doesn’t matter.  The jury sees everything.  If you are polite and they are not, the jury will take that into account in rendering their verdict.

POST-TRIAL

12.    You’ve been living on adrenaline for months - get ready for a serious let-down.  You will feel like you are walking in a fog.  Take some time off.  You’ve earned it.

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